Kerala High Court
Xxxxxx vs State Of Kerala on 4 April, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946
BAIL APPL. NO. 682 OF 2024
CRIME NO.749/2022 OF Kodakara Police Station, Thrissur
AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.3288 OF 2023 OF
HIGH COURT OF KERALA
PETITIONER:
XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADV K.RAKESH
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM, KOCHI, PIN - 682031
2 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
3 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADVS.
M.B.SHYNI
RAJESH KUMAR R.(K/112/2013)
V.R.ANILKUMAR(K/001161/2020)
SARAFUDHEEN T.(K/801/2022)
ELDHOSE JOY(K/172/2022)
AJITH P.C.(K/3643/2023)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 682 OF 2024
2
BECHU KURIAN THOMAS, J.
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B.A. No. 682 of 2024
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Dated this the 4th day of April, 2024
ORDER
This is the 3rd application for regular bail filed under
Section 439 of Code of Criminal Procedure, 1973.
2. Petitioner is the accused in Crime No.749 of 2022 of
Kodakara Police Station, Thrissur District. Petitioner is facing
an indictment for the offences under Sections 354, 376(2)(f)(1)
(n), 376AB and 323 of the Indian Penal Code, 1860 apart from
Section 6(1) r/w Section 5(k)(1)(m)(n) and 10 r/w Section 9(k)
(1)(m)(n) of the Protection of Children from Sexual Offences Act,
2012, and Section 92(d) of the Right of Persons with
Disabilities Act, 2016 and Section 75 of the Juvenile Justice
(Care and Proection of Children) Act, 2015.
3. Petitioner is the father of the minor victim, aged 11
years. He is alleged to have committed penetrative sexual
assault on his daughter while the mother of the victim was
undergoing quarantine due to COVID-19 pandemic. His earlier
two applications for bail were dismissed. He has been in
custody from 18-11-2022 and hence he seeks regular bail.
BAIL APPL. NO. 682 OF 2024
4. I have heard Sri.K.Rakesh, the learned counsel for the
petitioner as well as Sri.Ashi M.C., the learned Public
Prosecutor and the learned counsel appearing for the mother of
the victim.
5. On the earlier two occasions, this Court refused to
grant bail for reasons that have been specifically mentioned
therein. The petitioner is alleged to have committed a very
heinous crime of having sexually abused his 11-year-old
daughter. The medical evidence dated 08-11-2022 indicates
that the victim was subjected to penetrative sexual assault, as
tears were visible in the hymn. Further, the victim had also
given a statement under Section 164 of Cr.P.C. that her father
had sexually abused her repeatedly. Having regard to the above
aspects, this Court refused to grant bail to the petitioner.
6. It is, however, pointed out that in the initial medical
examination on 04-10-2022, the doctor had not noticed any
injury on the private parts of the victim. The doctor had also
noticed, in her opinion, that the medical evidence was
'seemingly inconsistent' with the allegation of sexual assault.
Though the aforesaid aspects may glare at the prosecution
case, this Court notices that there are allegations of penetrative
sexual assault, which could be established even without any
medical evidence. However, in this context, it should be kept in
BAIL APPL. NO. 682 OF 2024
mind that there is a matrimonial dispute between the
petitioner and his wife/the mother of the victim. Though the
contention of the counsel for the petitioner is that the medical
evidence was subsequently created, I am of the view that the
statement of the victim under Section 164 has specifically
referred to the instances of sexual abuse. Therefore, the
allegations cannot be said to be without any basis, at least
prima facie.
7. Notwithstanding the above, the fact that the petitioner
was arrested on 18-11-2022 and the circumstance that he has
been in custody from the said date till today, i.e; for more than
16 months, and taking into reckoning the existence of the
matrimonial dispute between the petitioner and the defacto
complainant, I am of the view that the continued incarceration
of the petitioner would not be proper. The possibility of an
immediate trial is also remote. However, strict conditions ought
to be imposed to ensure that the petitioner shall not, under any
circumstances, interact with the victim or any of the witnesses.
8. In the above circumstances, this application is allowed,
and the petitioner shall be released on bail in Crime No.749 of
2022 of Kodakara Police Station, which is now pending
consideration as S.C.No.1322/2022 on the files of the
BAIL APPL. NO. 682 OF 2024
Additional Sessions Court, Kozhikode on the following
conditions:
(a) Petitioner shall execute a bond for Rs.1,00,000/- (Rupees
one lakh only) with two solvent sureties each for the like
sum to the satisfaction of the learned Session Judge.
(b) Petitioner shall not enter Kozhikode District where the
victim and her mother are currently residing, until conclusion
of the trial, except for the purpose of participating in the trial.
(c) Petitioner shall not, under any circumstances, interact
through any means, directly or indirectly; either with the
victim or her mother or any of the witnesses of the case until
conclusion of the trial.
(d) Petitioner shall not intimidate, threaten, or influence any
of the witnesses in the case.
(e) Petitioner shall appear before the S.H.O. Kodakara Police
Station once every two weeks until conclusion of the trial
between 10:00 a.m. and 12:00 p.m.
This bail application is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
AJM/4/4/24
